Mandali Ranganna Versus T. Ramachandra

2008 (4) TMI 770 - SUPREME COURT

Civil Appeal No. 3128-3129 of 2008 - Dated:- 30-4-2008 - S.B. Sinha And V.S. Sirpurkar JJ. JUDGMENT: S.B. Sinha, J. 1. Leave granted. 2. Appellants herein are aggrieved by and dissatisfied with a judgment and order dated 6.3.2007 passed by the High Court of Karnataka whereby and whereunder the private respondents herein were allowed to make constructions on the lands in suit, subject to the final decision therein. It was furthermore directed that any alienation or creation of an interest by the .....

perties were acquired in the year 1912 by a deed of sale dated 22.1.1912. Allegedly, the predecessor in interest of the respondents being the original defendant No. 1 (M. Ramachandra) was adopted by Puttathyamma, widow of late T.M. Thimmaiah. A deed of adoption, therefor, was executed on 13.12.1937. Allegedly, a partition in the family properties took place in the year 1924. One of the questions which arose for consideration in the suit was as to whether the said partition was in respect of all .....

s came to be partitioned. From 1957-1969, a number of transactions mainly in the nature of grant of lease took place in respect of the suit properties. No title came to be created in favour of third parties. On 20.12.1971 for the first time, the first respondent entered into a partition deed, with the members of his family in which the suit schedule property was set out in the deed. Between 2002-2003, the petitioners called upon the defendants to partition the said properties which was refused b .....

according to the shares of parties. A consequential decree for permanent injunction restraining the respondents from alienating or constructing on the said properties was also sought. 8. During pendency of the said suit, original defendants executed a registered deed of lease on 15.12.2004 in favour of respondent No. 12 herein. Possession of the property, in question, was handed over to him. A deed of rectification was also executed on 12.12.2005. Appellants herein, thereafter filed an applicat .....

t; of the plaint in favour of the third parties. 9. By an order dated 24.4.2006, the learned Trial Judge directed maintenance of status quo. However, by reason of an order dated 12.9.2006, both the I.As. were allowed. The orders of injunction as prayed for were passed therein. On an appeal having been preferred therefrom by the respondents herein before the High Court, the same was allowed by reason of the impugned judgment directing; "17. For the above said reasons, both the appeals are al .....

ncerned person about the transaction being subject to the decision of the suit and shall mention in the concerned document that transaction will be subject to the decision in the suit. Any creation of interest shall be intimated by the defendants to the Trial Court." 10. Mr. Arun Jaitley, learned senior counsel appearing on behalf of the appellant submitted; (i) From a perusal of the deed of adoption dated 13.12.1937, it would appear that the properties, in question, had not been partitione .....

ew of the matter, so long the co-sharers were managing the properties in a manner which was not detrimental to the interest of the appellants, it was not necessary for them to file any suit. Creation of a third party interest, in a situation of this nature, or allowing the parties to carry on constructions would cause irreparable injuries to the appellants. (iv) Respondents having started constructions despite knowledge of the special leave petition, this Court should direct stoppage of such con .....

for sale of 1/3rd of the land in the year 1985 and the deed of sale was executed on 25.07.1989. (ii) Admittedly, as would appear from the photographs appended to the counter-affidavit, huge constructions have come up on the lands in question and as such there was no reason as to why the appellants had kept quiet for so long. (iii) A large number of documents have been filed before the court below before the courts below not only showing dealings with the properties but also showing execution of .....

rewith by reason of the impugned judgment. (v) Respondents, keeping in view the escalation of the costs of the building materials, would suffer irreparable injury, if they are not permitted to carry out the constructions. (vi) The Trial Court proceeded to consider the matter only from the angle as to whether the appellants would suffer irreparable injury or not without considering the other factors relevant for grant of injunction, viz., prima facie case and balance of convenience. (vii) In any .....

taken place in 1924 or subsequently or not? 14. Mr. Jaitley has taken us through various documents filed by the parties to show that the respondents had been taking contradictory stand with regard to the date of oral partition among T.M. Muniswamapa, T.M. Thimmaiah & T.M. Chikkaranganna, sons of Mandi Madalappa. It was pointed out that even in the deed of partition, a stand was taken by Puttathayamma that her husband and his brothers have effected partition on 30.06.1924 and the properties f .....

the synopsis, it was stated that the family properties were partitioned on 30.06.1924 and the properties in question fell into the share of T.M. Thimmaiah which was succeeded by Smt. T. Puttathayamma and T. Ramachandra and thereafter by his family members, in the writ petition filed on behalf of T.M. Ramachandra, T.R. Harish, T.R. Shekar, Smt. Padma, Smt. T.R. Rekha and Smt. T.R. Nadini being W.P. No. 29853 of 2002, it was stated that Mandi Madalappa was said to have been put in possession purs .....

rty during his life time and he had let out the property in favour of Garrison Engineers. 15. We have taken note of the aforementioned contentions of Mr. Jaitley only to highlight with issue in regard to the factum of partition but the same by itself, in our opinion, for the purpose of determining the issues herein, would not be conclusive. Prima facie it appears that the respondents had been in possession of the properties in suit for a long time. The heirs of Thimmaiah had admittedly been deal .....

ments furnished by the counsel for the defendants 1 to 6 in page No. 75 to 293 may establish their contention about their exclusive possession. But, I am afraid that this fact itself will be sufficient to throw away the suit at the threshold." 16. A large number of documents were produced by the respondents to substantiate that the property in question was in exclusive enjoyment of T.M. Thimmaiah being the adopted father of T. Ramachandra from 1924 to 1936. The properties were in possession .....

in the deed of adoption but they had all along been in possession of T. Puttathyamma. Apart therefrom evidently the deed of lease was executed in the year 1963 in respect of 1/3rd of the suit schedule property. It was renewed in the year 1969. The property was developed and the nature and character thereof was changed from time to time. A registered deed of lease was executed in the year 1968 between Killik Nixon and T. Ramachandra. A deed of partition was also executed on 20.12.1971. A deed of .....

injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The court will not interfere only because the property is a very valuable one. We are not however, oblivious of the fact that grant or refusal of injunction has serious consequence depending upon the nature thereof. The courts dealing with such matters must make all endeavours to protect the interes .....

requisite for grant of injunction exist. There may be a debate as has been sought to be raised by Dr. Rajeev Dhavan that the decision of the House of Lords in American Cyanamid Co. v. Ethicon Ltd. would have no application in a case of this nature as was opined by this Court in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. and S.M. Dyechem Ltd. v. Cadbury (India) Ltd. but we are not persuaded to delve thereinto." 20. Therein, however, the question in regard to valid adoption of a .....

e condition of the properties remaining wholly unused could deteriorate. These issues are relevant. The courts below did not pose these questions unto themselves and, thus, misdirected themselves in law." 21. Emphasis was also laid on the conduct of the parties while granting an order of injunction. 22. In Seema Arshad Zaheer and Others v. Municipal Corpn. Of Greater Mumbai and Others [(2006) 5 SCC 282], this Court held: "30. The discretion of the court is exercised to grant a temporar .....